Farmers are increasingly facing property seizures, instigated by eminent domain, that allow governments to develop their land for new projects.
At a May 12 town hall meeting for Cranbury Township in Middlesex County, New Jersey, anger was thick in the air.
“How would you feel if someone did this to your home!” shouted one woman.
More than 16 people took to the podium in the open comment portion of the meeting, double the usual amount. One resident angrily told the committee there was a lack of transparency in what was going on here. Weeks earlier, voicemail messages left on the committee’s public phone number included outcries such as, “You’re just stealing from the taxpayer, you need to give that f*cking farm back.”
This vitriol was aimed at the township for approving a housing project that would tear up a 175-year-old, 21-acre cattle ranch due to eminent domain, which allows governments (from municipal to federal) to seize property for public use and interest — even if the owner doesn’t want to sell. Cranbury Township is seeking to redevelop 11 acres of the ranch to install a range of affordable units, just minutes away from the busy New Jersey turnpike.
Ranch owner Andy Henry pleaded his case at the meeting, clarifying he wants to keep the property in his family and that it isn’t an investment. While he lives in New Mexico now, still owning the property with his brother and leasing it out to a farmer, he has consistently rebuffed $1 million-per-acre offers from other buyers over the past few decades. But this eminent domain ruling has felt like quicksand he can’t get out of.
Henry’s case is one of many pitting farmers and ranchers against the government right now. In the past, this law has commonly applied to public infrastructure upgrades such as installing new transit yards or widening highways. Utilities companies use eminent domain issuances to, say, build transmission lines across several counties, a situation adding drama to city council meetings in Maryland.
But eminent domain cases have seen marked expansion in their definition. In Southwest Iowa, a school district wants to acquire five acres from a 100-year-old farm to build a 10,000-square-foot bus barn with maintenance and wash bays, a concrete apron, and parking for bus drivers.
“This is a steamroll job by county officials… The whole thing stinks and they know it.”
In Iowa, farmer opposition has been quite effective against three proposed CO₂ pipelines that would capture carbon dioxide from ethanol plants and transport it out of state for sequestration. Private pipeline companies attempted using eminent domain to acquire easements across private farmland, in the hope of securing lucrative Inflation Reduction Act tax credits, with the Iowa ethanol industry claiming the pipeline is necessary to remain competitive in markets adopting low-carbon fuel standards. In March, the Iowa legislature voted to ban eminent domain for this type of project.
In Northeast Virginia, county government officials want to construct a 14-million-gallon per day water intake plant and adjoining pipeline on Garrett Farms’ riverfront acreage, using eminent domain leverage. Owner Cory Garrett told AgWeb in December, “This is a steamroll job by county officials … The whole thing stinks and they know it.”
Lawyers familiar with eminent domain cases have seen a surge in these rulings as infrastructure projects ramp up. “When you hear about these big bills to allocate trillions of dollars to highway improvement projects, for example, that means local transportation departments are putting in transmissions lines and need land for all of this, so they need to condemn more property,” said Sean Sherlock, a partner at Snell & Wilmer in Orange County, California.
The municipality or government body issuing the eminent domain letters to property owners may seem to be holding all the cards but their rights aren’t unlimited. Their eminent domain issuance can be taken to court where judges can reverse rulings and ensure the owner’s property is free from any development.
In any eminent domain case, compensation has to be given to the property owner, which can still be complicated due to how the owner and the government will each hire appraisers who may come up with very different amounts. “Government agencies often have an initial inadequate number, I’ve found,” said Sherlock, “and they don’t consider severance damages.”
“Government agencies often have an initial inadequate number, I’ve found, and they don’t consider severance damages.”
Say a municipality wants to seize 20 acres of a 160-acre property, at $10,000 an acre, he said. The owner may get $200,000 but those remaining 140 acres have lost value immediately, especially if some of those seized 20 acres are on top of an entry point.
Henry’s lawyer Tim Duggan filed a lawsuit against Cranbury Township, claiming their ordinance is not based on “sound legal and factual precedent.”
“These housing developments are in the middle of nowhere, so is that really in the public interest?” Duggan added.
Cranbury is using eminent domain in this situation due to an encroaching deadline. It had until June 30 to present a plan for adding 265 affordable housing units over the next decade, a requirement for every New Jersey community under the Mount Laurel doctrine. This series of state Supreme Court decisions, going back to 1975, mandates each municipality provide its “fair share” of affordable housing based on its population.
Henry said, “When I got that eminent domain letter in April, I was shocked, I had no clue it was coming. Cranbury didn’t reach out to me at all to even ask me to sell any acres to them.”
This is actually the second time Henry’s family had to fight to preserve their property. In the 1960s, the same township wanted to lay a road down through the family acreage, cutting through his family’s 2,300-square-foot farmstead.
“I remember hearing how our family and everyone in the community was going into town to fight off that ruling, and we obviously won,” Henry said, “and I hope for the same here.”
